Last reviewed 8 December 2021

Discrimination of any kind should not happen. When it does, employers need to take swift and robust action against the perpetrator(s). However, here we look at how to proceed if the discrimination is not overt, or obvious, but comes from an unconsciously held bias that taints the decisions an employee makes.

Unconscious bias can take many forms. Fundamentally, it is when a quick opinion is formed about a situation or individual, without the opinion maker necessarily even being aware that this has happened. For example, a person may instantly make a judgment about someone who fails to smile at them during a conversation, deciding that they must be unfriendly and unapproachable, when in reality they had just received some bad news and their mind was elsewhere.

A recent case

Unconscious bias was something that the Foreign Commonwealth and Development Office (FCDO) was faced with in action taken against one of its black employees based in Nigeria by an all-white group of managers. In the case of Ms S Warner v Foreign Commonwealth and Development Office [2021] UKET 2207245/2020, allegations were made against Warner to her employer by an organisation, following her recommendation that money provided to them should be subject to greater scrutiny. The allegation, that she was in a relationship with an employee of that organisation, had not been declared in accordance with the FCDO policy, and was a serious matter if found to be true. This prompted a six-month long investigation into the matter, during which Warner, it was claimed, was disowned and pushed away by colleagues within the organisation. In the initial investigation, it was not even questioned whether or not there was a relationship between the two parties, and this theme of unconscious bias (that was taken by the tribunal to be as a result of an assumption based on race) is apparent throughout the process undertaken.

The tribunal felt this case was one that needed to be finely balanced. It found that “…there was no overt malice or discriminatory attitude toward the claimant on the part of [those involved in the investigation and disciplinary] …”. “However, in overview, we have found that the claimant was treated with an unwarranted degree of suspicion, that unfair assumptions were made about her, that minds were closed, that she was treated unfairly in the disciplinary process…”.

The disciplinary process was found to have taken an unreasonably long time, during which insufficient support and care was offered to Warner. Based on this, the tribunal found that: “the explanations that we received from the respondent for this treatment were not just poor or unreasonable excuses. They simply did not adequately explain the degree of unfairness and unreasonableness in the treatment and we infer that the missing part of the explanation is the claimant’s race.”.

Discrimination does not need to be overt

This case is a reminder for employers that discrimination does not need to be overt, and that it is not always obvious that it has happened at all. Biases held by decision makers, consciously or not, can have a significant impact on the way that they deal with matters and the decisions that they ultimately make, which can leave employers vulnerable, as it did in this case, to discrimination claims where the bias is linked to a protected characteristic that the other holds. An example of this could be where a candidate for a frontline role has a deformity as a result of a disability, and the interviewer unconsciously assumes that they would not want such a role as it requires face-to-face contact.

Employers need to act carefully, as this case demonstrates that where there is no sensible explanation for what has happened, but it does not seem right, it may be that unconsciously the action was influenced by the protected characteristic of the victim. As such, decisions or actions that seem outside the normal course of things, or that cannot be explained with any other sensible explanation, should be viewed under the lens of unconscious bias.

Challenging our own behaviour

Whilst equality and diversity training is the norm, and employees should be aware that they should not discriminate, unconscious bias goes to the root of how and why decisions are made and the assumptions that underpin them. Therefore, employees need to get used to challenging their own behaviour and that of others, and to build in checks that the action or decision is not based on an unfair and discriminatory assumption that comes from a view of people holding a particular characteristic.

Diversity and inclusivity are goals that employers are increasingly taking positive moves towards. By including in training material that highlights unconscious bias and the way it can affect the decisions we make, will raise awareness of this issue. Being aware that this can happen is a significant first step towards tackling it as, by its very nature, individuals will likely not be aware that they hold an unconscious bias. Showing employees how to question what they are doing and asking themselves critically why they are thinking as they are, will help to reduce the chances of unconscious bias leading to discriminatory behaviour within the workforce, and promote the values of diversity and inclusivity.

An open mind is key to a thorough investigation

As a final point, the subtlety of the act in this matter is something for employers to consider. This is something that can be hard to prove at tribunal, which has the benefit of hindsight, and can be especially hard to spot whilst a process is being considered (or is already ongoing). Therefore, employers should take from this the importance of taking a considered approach when dealing with any disciplinary matter. An open mind is key to a thorough investigation. Employers would do well to remind their staff of this.